Fifth Circuit Agrees With Employee In Same-Sex Harassment Case

On January 19, 2012, the U.S. Court of Appeals for the Fifth Circuit vacated a district court’s judgment as a matter of law in a sexual harassment case involving same-sex conduct and remanded the case to the district court with directions to enter judgment on the jury’s $500,000 verdict in favor of the employee. The court also […]

On January 19, 2012, the U.S. Court of Appeals for the Fifth Circuit vacated a district court’s judgment as a matter of law in a sexual harassment case involving same-sex conduct and remanded the case to the district court with directions to enter judgment on the jury’s $500,000 verdict in favor of the employee. The court also found that the employee did not present sufficient evidence to support his claims of retaliation, loss of overtime, and for punitive damages. More after the break.

Plaintiff John Cherry brought the case against his former employer, Shaw Coastal, an engineering firm. Cherry alleged that his second-level supervisor engaged in sexual conduct against him by physically brushing up against him and touching him, asking him to wear cut-off jean shorts and take off his shirt, commenting on Cherry’s looks, and suggesting that Cherry should take off his pants. Cherry further alleged that his supervisor sent him sexual text messages and asked Cherry to stay at his house.

Cherry’s direct supervisor reported the physical conduct to a Shaw Coastal project manager, but the company took no action. Subsequently, Cherry himself complained to the project manager and offered to show him the supervisor’s text messages, but the manager refused to look at the text messages. Upon Cherry’s request, Shaw Coastal arranged for him to work in different crews, but Cherry reported that he was still “getting looks” from the harassing supervisor. Cherry then went to human resources to report that the supervisor was continuously bumping into him in the office, laughing at him, and “flipping [him] off.” Cherry ultimately resigned, and Shaw Coastal subsequently informed him that the harassing supervisor had been fired.

Cherry filed a lawsuit in federal district court alleging battery, sexual harassment, and retaliation, and requested punitive damages. Before trial, Shaw Costal filed a motion for judgment as a matter of law, and the district court granted the motion as to the punitive damages, loss of overtime, and retaliation claims. The court submitted the sexual harassment claim to the jury.

The judge instructed the jury that to find same-sex harassment, there must be credible evidence that the supervisor “is or was a homosexual” – the jury needed to find that the supervisor “intended to have some kind of sexual contact with Mr. Cherry.” The jury subsequently issued a verdict finding that Cherry was sexually harassed and that the supervisor had a sexual interest in males.

The district court subsequently granted Shaw Coastal’s motion for judgment as a matter of law and entered judgment for the company on all counts except the battery claim, asserting that the supervisor’s conduct toward Cherry “by itself did not amount to evidence establishing that [he] had a sexual interest in men.” The court also found that the conduct was not severe or pervasive because it only happened over 14 days, and it found that Cherry was “overly sensitive to homoerotic teasing.”

Although the Fifth Circuit agreed with the district court that punitive damages were not appropriate and that Cherry had not made out a retaliation case, the court disagreed on Cherry’s sexual harassment charge. Relying on the Supreme Court case of Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998) and the Fifth Circuit case of La Day v. Catalyst Tech., 302 F.3d 474, 480 (5th Cir. 20020), the court held that “if a plaintiff presents evidence that he was harassed by a member of the same sex, and that the harassment was sexual rather than merely humiliating in nature, that evidence is sufficient to support a verdict in the plaintiff’s favor.”

First, the court considered Cherry’s evidence regarding the supervisor’s physical touching and text messages and found that Cherry had produced far beyond sufficient evidence to support a same-sex harassment claim. Second, the court found that Cherry had produced sufficient evidence to demonstrate that the harassment was severe and pervasive. The court found it especially important that the harassment was physical in nature – this, in and of itself, demonstrated severity. Finally, the court held that Shaw Coastal was liable for the conduct because it did not take prompt and remedial action despite reports about the harassment.

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